ABDUL HAMEED BALOCH, J. The petitioner filed the instant Criminal Revision Petition against the order dated 18.11.2020 (the "impugned order") passed by the learned Sessions Judge, Sibi (the "trial Court") with the following prayers: "It is, therefore, respectfully prayed that the Order dated 18.11.2020, passed by Sessions Judge Sibi may kindly be set aside, after doing so the application filed by petitioners for transfer of case from the file of Sessions Judge Sibi to Judicial Magistrate concerned be accepted and trial of the case be conducted a fresh, in the interest of justice."
2. Brief facts leading to file the instant petition is that on 06.01.2020, the complainant namely Mehboob Ali SI lodged an FIR No.08/2020, under Section 412, P.P.C. with P.S Saddar Sibi, alleging therein that on the stated day he along with a police party started snap checking on Nari Bridge, when at about 4:40 p.m. a Toyota vehicle coming from Quetta side was intercepted. On checking six persons were found in the vehicle, out of which three persons were armed, whereas two persons were having Walkie Talkie sets. On query the driver told his name as Jahangir Khan, who introduced himself as Major in Pak Army, whereas the other persons introduced themselves as employee of the Pak Army. On further probe, the vehicle was also found robed from the area of Gulistan-e- Johar East Karachi and in this regard FIR No.443/2019, under Section 392/34, P.P.C. was already registered, as such the referred FIR was lodged against the applicant.
3. Heard the learned counsel for the petitioner, learned DPG and have perused the record with their able assistance. Perusal of record reveals that the learned Sessions Judge framed the charge under Section 412, P.P.C., whereas the petitioner filed an application under Section 227, Cr.P.C for alteration of the charge and transfer of the case to the court of Judicial Magistrate. The learned Sessions Judge rejected the application. It would be appropriate to reproduce section 412, P.P.C. hereinbelow:
412. Dishonestly receiving stolen property in the commission of a dacoity: Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
4. The word used in the Section 412, P.P.C. "knows" or has reason to believe to have been transferred by the commission of dacoity or dishonestly received from the person, whom he knows or has reason to believe to belong or have to belong to a gang of dacoits. Meaning thereby the prosecution must establish the accused had knowledge the vehicle has been used for commission of offence. The prosecution has to show that the accused had knowledge that the vehicle in question belonged to gang of dacoits. Mere recovery of stolen vehicle does not attract section 412, P.P.C. The prosecution will prove that the accused had a knowledge that the vehicle in question was used for commission of offence. Mere registration of FIR under section 392/34, P.P.C. in other province against unknown person does not ipso facto prove that the accused had the knowledge and mere possession of stolen vehicle does not attract Section 412, P.P.C. Under section 227, Cr.P.C. the trial court is empowered to alter the charge at any time either on application or on its own.
Once charge framed, would not become irreversible, even the court can alter the charge before pronouncement of judgment. Reliance is placed on the case of Muhammad Jameel Azeem v.
Ghulam Shabeer 2011 SCMR 1145, whereby the Hon'ble Supreme Court held as under:
7. A bare perusal of the said reproduced section would reveal that it has been couched in a very simple and plain language and no scholarly interpretation would be needed. The learned trial Court is competent to amend the charge if circumstances so justify subject to one condition that it should have been done prior to the pronouncement of judgment in order to eliminate the possibility of any prejudice to the accused person. The learned High Court has erred while holding that recording of some evidence would be needed prior to making any amendment in the charge because no such condition has been laid down in the provisions enumerated in section 227, Cr.P.C. whereby it has been made abundant clear that charge can be amended at "any stage" and the only restriction is that it should have been done prior to the pronouncement of judgment.
In this regard, we are fortified by the dictum laid down in Nadir Shah v. The State (1980 SCMR 402), Machia and 2 others v. The State (PLD 1976 SC 695, Shahadat Khan v. Home Secretary to the Government of West Pakistan (PLD 1969 SC 158).
5. Besides, there is no cavil to this proposition that the judicial magistrate while exercising power under Section 190, Cr.P.C., forward the challan to the Session Court for trial, the court becomes functus-officio. During trial when the court found the case is triable by the inferior court, then the court can transfer to such court. Section 347, Cr.P.C. has no relevancy with the case in hand, which for ready reference is reproduced herein below:
347. Procedure when after commencement of trial, Magistrate finds case should be tried by Court of Session or High Court (1) If, in any trial before a Magistrate before, signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, he shall send the case to the Court of Session or High Court, for trial.
6. As under above referred section, where the trial magistrate found the case should be tried by court of Session or High Court, then he shall send the case to the court of Sessions or High Court.
Meaning thereby the trial court has ample power where found the case is triable by inferior or High Court then has power to remit the case to those court. Rule of prudence/proprietaries demands that where the two-court having concurrent jurisdiction, then the case be tried by the court of V inferior jurisdiction. In this regard reliance is placed on the case of Malik Zafar Yousaf v. State PLD 2002 Lah 84, whereby it has been held as under:
12. In a regular forum, the Criminal Procedure Code has to be followed in letter and spirit and the procedures are to be also followed accordingly. While keeping in view the requirements of the Criminal Procedure Code, this Court agrees with the contention that as the Magistrate and the Sessions Court had concurrent jurisdiction in the matter, propriety demanded that the Magistrate first applied his mind to the proposition and took a decision about the forum, before the matter proceeded any further. And as the order of the learned Sessions Judge gave no reasons in the office order impugned transferring the case to the Court of the learned Additional Sessions Judge, this Court would reverse the order and remit the case file to the Ilaqa Magistrate. Who may consider this as a challan case submitted by the police and enquire whether it ought to be tried itself or by the Sessions Court and then proceed in accordance with law. The revision petition is consequently accepted and the case is remitted to the Ilaqa Magistrate.
In view of above, the petition is allowed. The order dated 18.11.2020, passed by the learned Sessions Judge, Sibi is set-aside. The Section 412, P.P.C. is altered to Section 411, P.P.C. The learned Sessions Judge is directed to transfer the case file to the concerned Judicial Magistrate for trial, however after recording evidence, if the prosecution proves that the accused was in knowledge of the fact that the vehicle in question was used in commission of offence, then the court act according to law as provided under section 347, Cr.P.C.